Monday, April 11, 2011

I recently represented a man accused of rape by his former wife's niece. These allegations first surfaced during the custody dispute between my client and his (now) estranged wife. The wife's sister's daughter suddenly came forward and claimed that my client had raped her numerous times, several years earlier, when she was just a teenager. As a result of these allegations, my client lost custody of his children, and was interrogated by the police.

Here's where he made his best decision - HE DIDN'T TALK TO THE POLICE! He didn't tell them that the girl was crazy (she was), he didn't tell them that she had made similar allegations in the past (she had), and he didn't tell them that he was innocent (he was!) He told the police that he wanted to speak to a lawyer, AND THEN HE HIRED ME!

Our office promptly contacted the police, the District Attorney's office and Child Protective Services. We appeared at the hearing on a restraining order that the "victim" was seeking against our client. The restraining order was dismissed. For two years, nothing happened. Finally, last year, the Shasta County District Attorney filed SIX charges of forcible rape, sodomy and other sordid sex acts against our client.

And the fight began. Nearly another year later, after numerous hearings, appeals and motions, the case was set for trial in April of 2011. However, after our investigation revealed numerous inconsistencies in the "victim's" story, as well as past cases where she had also falsely accused others of similar sexual misconduct, as well as drug use, as well as mental health issues, the case was finally dismissed on the eve of trial.

This case was a perfect example of how trials are won or lost BEFORE the first juror enters the court room! Our office subpoened court, school and juvenile records, obtained statements from former teachers and friends of the "victim," as well as obtaining police reports of these prior false allegations (where it was ultimately determined that the "victim" was not telling the truth!)

Of course, this evidence would have made us very likely to have won the trial, IF IT HAD EVER OCCURRED. However, instead, the case was dismissed without even going to trial.

Sunday, April 10, 2011

Although this seems like a simple question, the answer is anything but simple. Everyone has heard of someone arrested while "sleeping it off" in their car, or something similar. In many states, DUI only requires "control of the vehicle.". Therefore, merely sitting in the car with the keys in the ignition running and the radio or heater on could be enough for a DUI!!
NOT IN CALIFORNIA!
in California, "driving" for purposes of DUI requires "volitional vehicle movement.". In other words, the car must move under the "driver's" control. So, sitting in the driver's seat of a running car while drunk is NOT a DUI in California, but pushing a disabled car while drunk can be!!
Of course, just because the police don't SEE you driving doesn't mean you can't be convicted of DUI based on circumstantial evidence (that you drove while drunk before they arrived). However, there may also be evidence that a person consumed alcohol (or a drug) AFTER they parked!
My first DUI trial in Shasta County (in about 1994!)involved police being called to a liquor store parking lot, where they found my client passed out in the driver's seat of her car, with the engine running and the car IN GEAR!! The only reason the car wasn't moving was her unconscious foot on the brake! After police finally roused her, they arrested my client (the only person in the car) for DUI! She was so drunk, she actually had wet herself!
Well, we were able to show that her husband had actually driven the car to that location, and then walked off after getting in a fight with his EXTREMELY drunk wife! Unfortunately, he forgot that she had a spare key in her purse! The jury acquitted after about two hours!

Friday, April 8, 2011

You probably already know that in order to stop you in your vehicle, an officer needs probable cause. It's not enough for him to operate on just a hunch you might be DUI (driving under the influence). If it's late at night or very early in the morning and an officer really wants to stop and question you, he'll typically follow you for a while looking for something. Of course we all know that feeling of dread when there's a cop following us. Am I speeding? Is my registration still good? It's unnerving business even if you haven't had anything to drink. People who have been drinking to excess will sometimes touch or cross the "fog line," constituting a reason for the officer to pull you over.

Sometimes, however, an officer really wants to stop you and your driving is perfect. He will then look for some obvious equipment violation. License plate light out? Good enough. Missing a brake light? Forgot to use your turn signal? Any of these reasons is good enough.

Recently a client was stopped because the officer claimed the car's round tube-shaped bumper blocked his view of the license plate. No allegations were made that his driving was anything less than perfect. My examination revealed that the license plate could be in fact be seen and read perfectly. I filed a motion to suppress the evidence. Photographs were introduced. The car was viewed. In the end, the court agreed that the license was visible and there was no probable cause for the officer to stop my client. The case was dismissed.

Cops work very hard and make countless judgment calls each day. In the interest of protecting the public, sometimes they may be overzealous with their interpretation of "probable cause." It's my job to hold them to the high standards the law requires. In a DUI arrest, make sure you have an experienced DUI attorney who will meet with you, review the evidence against you, and ensure that your rights are protected as your case moves through the courts.

Tuesday, April 5, 2011

Anyone who has dealt with the DMV knows that it is a world that scarcely resembles anything normal. DMV Hearings in DUI case (called ADMIN PER SE hearings) are no different. First, there's the setting: the Hearings take place in the office of the Hearing Officer, at DMV. Oh, did I mention that the hearing officer is ALSO the prosecutor? And the Judge. Yes, it's as if you got arrested, went to trial, and they took you to the police station for your "trial." And then, when it is time to call the jury, they walk in: ALL COPS!!! Yes, these hearings can be hard to win, to say the least.

The good news is that DMV hearings are hyper-technical in nature. Some circumstances that would not cause a dismissal in the criminal case can force a "set-aside" from DMV. These "loopholes" may often seem insignificant at first glance, but can often be applied to the driver's benefit.

Well, thanks to the loyal staff for starting this blog up. I'll try to populate it with stories and tidbits from the war against tyranny (also known as criminal defense). I suppose some relevant summaries of new and modified laws, and how they impact each and every one of us....

Wednesday, March 23, 2011

Domestic violence is a broad category of cases which may or may not involve actual violence or injury. Even non-domestic violence convictions involving violence will result in a ten-year loss of all state firearms rights, and even a non-domestic violence conviction involving a spouse or partner will result in a lifetime federal firearms ban. Also, a domestic violence or child endangerment conviction can create a powerful legal presumption prohibiting a court from awarding child custody to the convicted person, even years after the conviction. A domestic violence conviction can have lifelong consequences. If accused of such an offense, it is extremely important to hire an attorney with substantial experience in fighting such cases.

Following an arrest for DUI, you have just 10 days in which to contact the DMV and request an administrative hearing. Typically the officer who arrested you will give you a temporary license that shows the contact information for the DMV. This is sometimes overlooked in the stress of an arrest and its aftermath.

There are some exceptions to this 10-day rule, such as when the officer didn't serve you the required papers, or if you were hospitalized after an arrest.

If you contact the DMV and set a hearing yourself, thus preserving your right to the hearing, I can contact them once I represent you and reschedule your hearing. Your license will be valid until at least the date of the hearing, no matter how often it is rescheduled. The DMV will mail you another temporary license good through the date of the hearing.

You can call the Redding DMV at (530) 224-4755 or fax them at (530) 244-4737. Have your driver's license number, date and location of your arrest, and the agency (CHP, RPD, etc.) that arrested you handy when you call.
Or you can obtain a FREE hearing request form from our office by calling (530) 241-6DUI.